Women Sue “Revenge Porn Site” Where Men Publish Photos of Former Girlfriends

For our torts lovers, there is an interesting case out of Fort Worth. We have been following the increased litigation over websites that trash former boyfriends or girlfriends or spouses or even strangers (here and here and here). In the latest case various girlfriends are suing over what is described by some as a “revenge porn site” called Texxxan.com where men revenge on their ex-girlfriends by publishing revealing pictures of their former lovers.

Teacher’s aide Hollie Toups, 32, says that she was actually approached in a store after someone identified her as featured on the site. Now she and 25 other women are suing the website and its owner. The owner, however, goes by a fictitious name.

Notably, the complaint states that the website refused to remove the photos unless they paid a fee. The complaint is based on a class action and invokes joint and several liability. The Plaintiffs claim intrusion upon seclusion, public disclosure of private fact, wrongful appropriate of name or likeness, false light, negligence, intentional infliction of emotional distress, and civil conspiracy under Texas law. The complaint is fairly bare bones.

The use of a class action could be challenged on the basis of a lack of commonality or typicality based on the different underlying facts. These cases of disclosure are often mixed with questions of consent or assumption or plaintiffs’ conduct. If a person gives another person a revealing photograph, the question becomes the expectations or protected interests of such individuals. Many such pictures are taken with the assumption that they would not be shared but there is no guarantee. Also, if someone takes revealing pictures and gives them to a third party, can you claim intrusion upon seclusion or the public disclosure of private facts? To what extent do those claims depend on proof of an agreement that the photos would not be shared? That could create difference among class members. A court could find that those differences are not determinative given the lack of consent to appear on the site, particularly with regard to appropriation of name or likeness claims. Even if not appropriate for a class action, it would seem clear that some of these women have liable privacy claims.

The false light claim is interesting but unexplained. The site is billed as based on revenge. Thus, it seems unlikely that people would think that these women actually posed for porn, but it could be part of the claim.

The claim against GoDaddy could turn on federal rather than state law — and a question of preemption. The case will turn on whether the site is protected under the Communications Decency Act, which has been used repeatedly by Web providers to bar liability. These cases highlight the protection given to Internet companies like Craigslist and Facebook from defamation lawsuits. Under a federal law and the ruling in Zeran. The Communications Decency Act. Section 230 of the 1996 Act gives protections to online service providers from being sued for the actions of others. That section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Kenneth Zeran sued America Online for negligence. On April 25, 1995, an unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-shirts.” It was a prank that featured offensive products about the Oklahoma bombing and told interested buyers to call “Ken” at Zeran’s home phone number in Seattle. Zeran notified AOL in a series of telephone calls and letters about the bogus posting. But AOL allegedly refused to take down the material. Then the prankster put more messages on the site from Ken, not only producing more calls but leading an announcer for the Oklahoma radio station KRXO to read the messages and encouraged listeners to call Zeran.

The Fourth Circuit held that Section 320 blocked any liability, even if AOL was informed of the falsity and harmfulness of the information. It was a very harsh decision but it has been applied by other circuits.

Any way you cut it, this should be an interesting lawsuit. It is the inverse image of the “Dontdatehimgirl.com” lawsuit, though that lawsuit involved allegedly defamatory statements as opposed to pornographic images.

The Plaintiffs will likely be able to track down the owner through subpoenas and discovery. It is a worthy lawsuit against this individual, though the liability of GoDaddy seems questionable in light of Zeran unless they can find a way around it.

“The Communications Decency Act. Section 230 of the 1996 Act gives protections to online service providers from being sued for the actions of others. That section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

But this site charged to remove the offending post. At that point it seems to me that the site entered into what I will call a crime.

A site that simply allows post might deserve protection.

A site that attempts to monetize the public humiliation or others deserves no such protection. In this case the site, through its web presentation, promotes the idea, encourages the act, provides the venue, reaps the reward.

I do not believe the act or the decision were intended to protect sites actively involved in promoting attacks on others.

Charging for removal smacks of extortion, but that’s the site owner, not GoDaddy. I suspect GoDaddy gets dismissed. The claim against the site owner probably has merit, but my gut says the site owner will, if they’re able to track him down, be some broke guy working out of his mom’s basement, and any judgment will never be collected.

One correction to the professor’s story. I took a look at the source, which has a copy of the lawsuit. Although the story is written by a Fort Worth TV station, the lawsuit is in Orange County, which is Beaumont, east of Houston and no where near Fort Worth.

I agree that is an important point to consider. But I believe there is a good reply to that point.

The reason to protect sites is to allow them to act as conduits for information. In effect they act as information utilities – in providing access they neither promote nor inhibit the transmission of content..

When the site charges more to remove the entry than its cost and makes a profit, it has entered into the business of presenting embarrassing or harmful information. The site may not develop the content. But the site is in the business of using the content for business purposes to make profit.

In effect they are making a business of blackmail – ‘pay me or I will reveal private information about you’.

I see no reason why such business practices should be protected.

Even if there were a reasonable claim that the public should have the information, that should be decided on a case by case basis by a jury.

There is no reason to give blanket protection to the business of extorting individuals with embarrassing information.

Thanks Waldo. You made my point first. I guess I should read through all the comments before I respond.

Admittedly charging to take down these pictures is more dispicable, but is it legally any different from sites like Yelp or ApartmentRatings or WeddingWire charging businesses/landlords to remove negative reviews (a very commone practice)?

This website has received an unlimited amount of local and national media attention which has in turn resulted in extremely large traffic overloads to the website and servers, causing server errors and capacity issues. Individuals with the knowledge and know how to gain complete control have since had to step in and have began controlling administrator access to this website and limiting the systems of control and site moderation that had been put in place from the beginning for certain viewers and users of the public to control and administrate the site.

This process has still inevitably allowed the viewers of the site to turn it into what it has evolved into today from when it was simply just an internet platform to see what the public would turn it into and we have clearly seen that this answer has been provided. We are currently assessing the current controversial issues at hand but even though we may not agree with what this website has evolved into due to submissions and comments of public viewers of the website, we find no wrong doing from the website which has only been a framework for the public viewers to build upon. This website has been up and running since November of 2012 and to witness a blank framework being made available to the public in its infancy and then observing the evolution of the site and what it has been transformed into today is simply astounding to find that the public is completely capable of collectively building upon available frameworks to create an engaging and hugely trafficked website that has since attracted the endless amounts of local and national media attention that it has.

bigfatmike & Waldo
I agree completely with you that it certainly smells of extortion and that is certainly wrong. I was just pointing out the fact that the offending items COULD be removed, albeit for a price.